Tuesday, January 17, 2017

Rat Hairs and Cockroach Parts

Defining How to Use Administrative Law

Kaplan University
Mary-Ellen Pecci
(c) 2017

 Defining How to Use Administrative Law
Keeping politics out of our public agencies appears to be a challenge. I have used examples of Departments of Corrections, the courts, and triage during times of crisis, to try and decipher what the limitations and challenges on public agencies might be in defining how to use Administrative Law.

The Administrative Procedure Act and Delegation Doctrine
Without Administrative Law; agencies could run amuck, indulge in self-interest, obstructing democratic and constitutional values, hence the development of the APA, Administrative Procedures Act. The APA ‘attempts’ to provide protection from the abuses of unlawful discretion, abuse of power, and ‘tries’ to keep public administrations in line with those statutory and constitutional values.
‘In the beginning’ there was the non-delegation act which prevented the ultimate decision makers, congress, from delegating any authority for decision making. But, that was not going to work. People with limited knowledge of how a service or entity functioned, it was recognized, should not be making pertinent decisions. As a result congress was given the power to grant or delegate authority to the 4th branch of government, the public agency, who now have the power to make limited legislative, judicial, and executive decisions.

·         Legislative—Legislative delegating involves a public agency being given the power to draft the statute after public input—Notice is published in the Federal Register and the public can then comment before the statute is drafted and posted in the Federal Register. From there Administrative Regulations can be written. Informal rule making is viewed more practical then formal rulemaking as flexibility for change is useful. This usefulness is sometimes manipulated by lobbyist and other power brokers. This can also lead to excessive freedom for an administrator to interpret a statute and the administrative regulations that define/interpret the statute. An example would be Colorado Statute 24-60-16, Interstate Corrections Compact, and the accompanying Administrative Regulations. The statute is well stated.  The A.R. further defines the process in AR600-01-IV- P, regarding inmate exchange under ICC.  In the case in point, an inmate put out a request to apply for the exchange and an administrator said “there is no such thing.” 

·         Judicial—Agencies are given the power to adjudicate between the person and the government. Formal adjudication can result in hearings, testimony, etc., where informal adjudication may involve investigation, conferences and negotiations. In the case in point, a formal complaint was filed with an appeals court judge, whom is part and parcel of the agency politically and he/she makes the decision for or against the public agency in error. The judge misinterpreted the very clear complaint. Cover,  (1986) on legal interpretation, “… every word a judge utters takes place on a field of pain, violence, and even death. Judges are, in fact, among the most violent of all federal and state government employees. The violence judges routinely engage in makes the carnage of serial killers seem insignificant in comparison.”

·         Executive decisions--The president has the power to issue an executive order that the legislature will have a hard time nullifying. Many have been written over our history.  Rosenbloom, (2015), Bill Clinton and Barack Obama issued orders aiding regulatory function and clarity.  Barack Obama has pushed forward on criminal justice reform through many executive orders; one which issues Pell Grants to inmates to acquire college degrees. AlterNet Staff, (2016) The Pell Grant was taken away by President Bill Clinton when he signed the Omnibus Crime bill. This not only took away the Pell Grants but increased sentences. AlterNet Staff, (2016), “Tag-teaming with ex-President Ronald Reagan, Clinton is the president most responsible for the mass incarceration of Americans on an epic scale.”  NOTE:  Bill Clinton also submitted to political power when he include the denial of Habeas Corpus for inmates to appeal their sentences in the AEDPA, The Antiterrorism and Effective Death Penalty Act. 

The issuance of the executive order is similar to watching a hockey puck fly between sticks before it hits the net and then goes back into play. It can be challenged with a new incoming administration. Congress can pass a bill that strips funding for that Executive order.  The president that wrote the order can veto the Congressional Act and that veto needs a 2/3rds vote of the Congress to override the president’s veto.  An incoming president can accept the new bill; and the political game starts all over again.

By delegating authority to the 4th branch rulemaking can now take place. They can input substantive rules which are statutory. Public input is allowed and the proposed rule goes to the proper authority with that input before the statute is drafted and entered into the Federal Register.  

·         As an example of Public Input:  Fink, (2016) “Preparing to make recommendations for state officials that could serve as a national model, the researchers heard hundreds of citizens discuss whether a doctor could remove one patient from lifesaving equipment, like a ventilator, to make way for another who might have a better chance of recovering, or take age into consideration in setting priorities.” Suggestions ranged from; a lottery, children over adults, first come/first serve, or don’t treat the critically ill. Fink, (2016) “In Maryland, participants in the forums, designed with the help of Carnegie Mellon University’s program for deliberative democracy, tended to favor saving the most lives or years of life by prioritizing people who were expected to survive their current illness or live the longest after being treated.”

·         The public agency can also make rules that are interpretive. They take a statute apart interpreting the verbiage in order to clarify what in the statute aids in implementing procedure, adding concise definitions, etc. These interpretations can appear in manuals or other material. This again would be; Administrative Regulations of a Department of Corrections interpreting a statute.

·         Policy Statements: are on a similar plane as interpretive statements.  They offer guidance.  They do not change the statute in any way and have no legal force. They are suggestions on process and procedure that may help alleviate an issue.  In APHA (American Public Health Assoc.)(2016), policy #LB-16-02, Law Enforcement Violence as a Public Health Issue; they produced data, cited evidence based strategies to improve the situation and cited opposing evidence. Industries that may be effected by this policy statement would be, producers of cameras with upgraded technology and other products produced for our police departments. Private corporations benefit greatly from many public agency developed statutes and rules.

Maintaining the Balance of Agency Powers
Fourth branch, public agency, power is limited. Separation of Powers keeps the checks and balances fairly well between executive, judicial, and legislative branches, but there can be glitches when turning these powers over to a public agency. Glitches such as the Intelligible Principal Doctrine; Rosenbloom, (2015) “the meaning of the statute is in the eye of the beholder” Rosenbloom, (2015). Broad interpretations that use language as a cloud, what Chief Justice Rehnquist calls the “Legislative Mirage” are definitely common.  Such loose vocabulary as adequate, advisable, appropriate; these words create “a term with no fixed meaning that can accommodate any reasonable action.” “The weaker the ‘intelligible principle’ the greater the discretion.”

Rosenbloom, (2015) “Where law ends tyranny begins.” “Delaware v. Proust, “…unrestrained discretion in law enforcement is an “Evil.””)

In order to keep the checks and balances and prevent these abuses it is important to have tight structure to the decision making. The Intelligible Principal Doctrine has to leave no room for interpretation by ‘the eye of the beholder’, and consistent procedural and substantive review of those decisions, particularly to make sure they are in keeping with legislative intent, has to be maintained. Leaving room for change is like opening the wound to bacteria. Start over if a change has to be made. I believe that is happening now with the Affordable Care Act. 

 A crucial issue is--adjudication. In many locations complaints regarding poor administration, agency politics… causing trauma to families is rampant and shocking.  Those who are adjudicating, usually district court judges, are notoriously incompetent and/or careless. Regarding state judges, Strick, (1996) says “Most judges . . . are ex-prosecutors, ex-cops, ex-officials who worked on the hard side of government, or ex-party workers. Most of them were hacks -- small-time lawyers with big-time friends -- and some were crooks the week before they went on the bench . . . Most of those men [and women] have no respect for the individual and no interest in his character or his future.”

Our courts systems and family services divisions are in sad need of repair.

In the words of Sherrer, (2003) “…until state and federal judgeship's are depoliticized and judges are held personally, directly and openly accountable for the violence they initiate with the words they speak and write, they will continue to inflict egregious harm on multitudes of innocent people with scant regard for the human consequences of their actions.”

The conclusion
We have to keep politics out of public administration. Unfortunately it is not as easy as counting ‘rat hairs’ or ‘cockroach parts’, per FDA regulations. Rosenbloom, (2015).


AlterNet Staff. (June 22, 2015).  15 Ways Bill Clinton’s White House Failed America and the World; Many Americans do not associate Clinton with his dark legacy. AlterNet. Retrieved from http://www.alternet.org/election-2016/15-ways-bill-clintons-white-house-failed-america-and-world  

APHA (American Public Health Association). (Nov. 12, 2016). Law Enforcement Violence as a Public Health Issue. Retrieved from http://apha.org/policies-and-advocacy/public-health-policy-statements/policy-database/2016/12/09/law-enforcement-violence-as-a-public-health-issue

Cover, R. (1986). Violence and the Word. 95 YALE L. J. 1601, 1607. Retrieved from http://digitalcommons.law.yale.edu/fss_papers/2708/

Fink, S. (Aug. 21, 2016). Whose Lives Should Be Saved? Researchers Ask the Public. New York Times. Retrieved from https://www.nytimes.com/2016/08/22/us/whose-lives-should-be-saved-to-help-shape-policy-researchers-in-maryland-ask-the-public.html

Sherrer, H. (2003). The Complicity of Judges in the Generation of Wrongful Convictions.           30 N. KY L. Rev. 539. Retrieved from http://justicedenied.org/issue/issue_29/complicity_jd29.pdf

Strick, A. (1996) Injustice for All, Barricade Books. Fort Lee, NJ. Retrieved from https://www.amazon.com/Injustice-All-Anne-Strick/dp/1569800650

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